File 2: Opinion of Member Wasserman

[ v55 p1129 ]

Member Wasserman, dissenting:

For the reasons set forth in my dissent in PTO II, 54 FLRA 360, I would find that Section 2(d) of Executive Order 12871 constitutes an election to bargain under section 7106(b)(1) of the Statute. Consequently, consistent with this view, I would find that the Respondents violated the Statute by refusing to negotiate over the section 7106(b)(1) matters referenced in the National Council and AFGE Local 3694 bargaining requests.

I would also find, based on this view, that Respondent SSA was required to furnish the information requested by AFGE in connection with its request to bargain over section 7106(b)(1) matters relating to staffing, and that the failure to do so violated the Statute as alleged.

In addition, I would find that the Respondents repudiated the National Agreement when they refused to bargain over the section 7106(b)(1) matters. The clause at issue states that the parties "will bargain in good faith, including bargaining on issues which may fall under 7106(b)(1), using interest-based bargaining (IBB) with the objective of reaching agreement." Judge's Decision at 18. The Judge and the majority find reasonable the Respondent's interpretation that this clause simply commits it to bargain in good faith when an election is made. To the contrary, this clause on its face clearly reflects an election on the part of the Respondents to negotiate over 7106(b)(1) matters. Acceptance of the Judge's viewpoint must be based on the premise that the requirement of good faith does not, by statute, extend to permissive bargaining.

In my view, the Statute already requires that parties bargain in good faith once there has been an election to bargain on a permissive subject, such as a (b)(1) matter. For how could an election to bargain be otherwise? No election could be genuine if the election somehow permitted bargaining in less than good faith; good faith is the essence of any negotiation. Without it, surface bargaining, or other sham bargaining would be acceptable. In my dissent regarding the enforceability of the President's election to bargain made in Executive Order 12871, I described in some detail the reasons why I view good faith to be a requirement of bargaining permissive topics. PTO II, 54 FLRA 360, 401-03. I noted analogous state labor law that found the good faith requirement in the permissive area. With respect to the Statutory underpinnings of my analysis, I stated the following:

The attachment of the good faith requirement to permissive bargaining in the federal sector is underscored by
the wording of 5 U.S.C. § 7116(a)(5), which connects the good faith requirement to the process of bargaining, in
contrast to section 7117, which addresses good faith in the context of the subject matter. Permissive topics are
not excluded from the parameters of the good faith requirement, nor should they be. Moreover, as noted by
PASS in its amicus brief, section 7106(b)(1) subjects are "permissive" under our Statute only because they are
negotiated at the election of the agencies; the topics themselves concern conditions of employment which are
viewed in the private sector as mandatory subjects of bargaining. PASS Brief at 4. This distinction provides an
additional basis for my determination that a good faith obligation attaches to permissive bargaining.

For the period of bargaining between an election and the revocation of an election, the parties should be
required to approach negotiations with the same honesty and resolve to reach agreement that they would bring
to bear on mandatory subjects. This is consistent with the goals embodied in the partnership concept. In this
case, the Respondent was obligated to bargain in good faith subsequent to the election, and its failure to do so
regarding the section 7106(b)(1) matters constitutes an unfair labor practice...

Id. at 402.

Therefore, as there already is a requirement to bargain in good faith if an election is made, an interpretation that the clause simply commits an agency to bargain in good faith once it has elected to bargain at all, deprives section 2 of any meaning. I would avoid an interpretation that in effect renders a part of a contract meaningless. See Elkouri & Elkouri, How Arbitration Works 493 (Marlin M. Volz & Edward P. Goggin eds., 5th ed. 1997). [n1] Rather, when the clause is read in its entirety, I am convinced that its only reasonable meaning must be a commitment to bargain in good faith on section 7106(b)(1) matters.

The last portion of the disputed contract language evidences a commitment to use IBB techniques and to reach agreement on all bargaining, including section 7106(b)(1) issues. If the Respondent were not making an election in the Partnerships Article, as I interpret it to have done, it would be illogical for it to commit to reaching an agreement. If (b)(1) subjects remained permissive in nature as the Respondent contends they did, [ v55 p1130 ] the Agency could stop short of reaching an agreement. Thus, the sentence read in its entirety supports my interpretation.

The majority, in note 9, suggests that it is unnecessary to address the Judge's statement that, if the Partnerships Article of the 1996 collective bargaining agreement constituted an election to bargain, then the Article would be inconsistent with the Management Rights provision of the parties' agreement. On the contrary, the Management Rights article of the 1996 national collective bargaining agreement actually reinforces, rather than negates, the election memorialized in Section 2 of the Partnership Article. It is evident that the statement in the Management Rights article, that nothing shall preclude negotiations at the election of the Agency on (b)(1) matters, is consistent with the plain language of Section 2 of the Partnerships Article, which is clearly an election to bargain on (b)(1) matters. Thus, even the Management Rights article indicates that nothing within it should be construed to interfere with the election already made.

Furthermore, the 1994 National Partnership Agreement states that one of its objectives is to:

(8) Ensure full implementation of the Executive Order 12871 over all 7106(b)(1) issues, whether at the union's
request or as the result of proposed Agency action, immediately upon signing of this agreement.

Joint Exh. 2. Read together with the Partnerships Article of the 1996 National Collective Bargaining Agreement, the
two are fully consistent. While the statement of objective 8 is not dispositive, it is a further indication of the seriousness
with which the parties committed themselves to negotiate on (b)(1) issues. This commitment continues under
the 1996 National Collective Bargaining Agreement absent a conflict between the 1996 National Agreement and the
1994 Partnership Agreement, a conflict which I do not find present. Moreover, Appendix A to the 1994 Partnership
Agreement defines "regular issues" to be negotiated as "statutory rights including 7106(b)(1)," which are subject to
agreement or alternative dispute resolution procedures. Therefore, I understand the 1996 National Collective Bargaining
Agreement as a further commitment to bargaining over (b)(1) issues that was first stated in the 1994 Partnership
Agreement.

Finally, I am unpersuaded by the majority's attempt to use bargaining history to support its finding that the Partnerships Article did not constitute an election to bargain on (b)(1) issues. Given my view that the clause at issue can only be reasonably interpreted as an election, it is unnecessary and would be irregular to look beyond that plain meaning. If an agreement is unambiguous, it is improper to modify its meaning by invoking the record of prior negotiations. Elkouri & Elkouri, How Arbitration Works at 504. "It is axiomatic . . . that clear and unambiguous language, decidedly superior to bargaining history, to past practice, to probable intent, and to putative intent, always governs." O. Fairweather, Practice and Procedure in Labor Arbitration, 174 (3d ed. 1991) (citation omitted).

I am well aware, as my colleagues note, that parties may incorporate statutory requirements into their agreements. However,
an interpretation of the incorporated language must be made in context, which here provides that the parties "will bargain in good
faith, including bargaining on issues which may fall under 7106(b)(1)[.]" Judge's decision at 18. It is the interpretation of the
clause as merely committing the Respondent to bargain in good faith whenever bargaining occurs that I view as unreasonable,